MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2016 ME 162 Docket: Yor

- 16

- 99 Submitted

On	Briefs: September	29,	2016 Decided: November	8,	2016
Panel: SAU FLEY,	C.J.,	and	ALEXANDER, MEAD ,	GORMAN, JABAR , and HUMPHREY, JJ.

IN	RE CAMERON	Z.	et	al.
MEAD,	J. [¶1] The	 mother	 and	 father	 of	 Cameron	 Z. ,	 Calvin	 Z.,	 Cole	 Z.,	 and Lawrence	Z.	appeal	 from	a	judgment	of	 the	District	Court	 (Biddeford, Foster, J. ) terminating	 their	 parental	 rights	 to	 the	 children	 pursuant	 to 22 M.R.S. § 4055 (1)(B) (2015). 1 Both	 parents	 contend that	 the	 evidence	 was insufficient	to	support	the	court’s	 finding s ,	by	clear	and	convincing	evidence, of	at	leas t	one	ground	of	unfitness as	to	each	parent,	and	that	termination	of their	 parental	 rights	 was	 in	 the	 chil dren’s	 best	 interest. See	 i d. The	 father additionally	 contends	 that	 the	 court	 erred	 in	 admitting	 hearsay statements made	by	one	of	the	children,	and	that	the	trial	judge	should	have	granted	his
motion	to	recuse. 2 We affirm	the	judgment.

1 The	 moth er	 consented	 to	 a	 termination	 of	 her	 parental	 rights	 to	 Lawrence;	 she	 does	 not challenge	that	part	of	the	court’s	judgment.

2 We	have	fully	considered	the	father’s	arguments	o n those	issues .		We	discern	no	error, and we conclude	that	they	do	not	warrant further	discussion.2 I.		BACKGROUND
A

. Procedural	History [¶2 ] On	 February	 6,	 2014,	 the	 Department of	 Health	 and	 Human
Services filed	 a	 petition	 for	 a	 child	 protection	 order	 and a request	 for	 a prelimin ary	order	concerning	Lawrence ,	who	was at	that	point	unnamed	and still	in	the	hospital	af ter	being	born	drug

- affected	on	January	21

. See 22	M.R.S. §§ 4032 , 4034(1) (2015). 3 The	 Department	 alleged	 that	 the	 baby	 had effectively been	abandoned	at	the	hospital	by	the	parents,	and	that	the	father’s
six

- yea r - old	 son	 from	 another	 relationship , D.G. , who	 lived	 in	 the	 parents’ home,	had	recently received	unexplained inflicted	injuries. The	c ourt	granted a	 preliminary	 order	 the	 same	 day	 giving	 custody	 of	 Lawrence	 to	 the Department. The	parents later failed	to	appear	for	the	summary	preliminary hearin g. Also	on	February	6,	the	Department petition ed for	a	chi ld	protection order concerning Cameron,	Calvin,	and	Cole ;	it	did	not	request	a	preliminary order	 and	 the	 children	 remained	 in	 the ir home	 pursuant	 to	 a	 safety	 plan developed	by	the	Department

. [¶3 ] On	May	15 , the	court	entered	a	jeopardy	order	as	to	the	mother by agreement concerning	 all	 four	 children;	 the	 father	 did	 not	 appear for	 the

3 Title	22	M.R.S.	§	4034(1)	has	since	been	amended,	but	not	in	any	way	that	affects	this	appeal. P.L. 2015 ,	ch.	501,	§	9	(effective	July	29,	2016).3 hearing

. See 22	M.R.S.	§ 4035 (2015). The	court	found	jeopardy	based	on	the mother’s	substance	abuse	issues,	her inadequate	supervision	of	 the	children, and	her	 failure	to	appreciate	the	risk	posed	to	them	by	the	 father. Cameron, Calvin,	 and	 Cole were	 placed	 in	 the	 mother’s	 custody	 subject	 to	 several conditions,	one	of	which	was	that	she	“not	permit,	tolerate	or	fac ilitate	contact between	 the	 father	 .	 .	 .	 and	 any	 or	 all	 of	 the	 children	 without	 the	 written approval	 of	 the	 Department.” Lawrence	 remained	 in	 the	 Department ’s custody	at	his	foster	home. [¶4 ] Based	 on	 the	 father’s	 representation	 that	 he	 was	 returning	 to Maine	from	Florida	to	contest	a	jeopardy	finding,	the	court	reset	his jeopardy hearing	 for	 May 30. On	 that	 date	 the	 father	 again	 did	 not	 appear; unbeknownst	 to	 the	 court,	 he	 had	 been	 arrested	 a	 few	 hours	 before	 the scheduled	hearing	and	was	in	 the	Cumberl and	County	 Jail. The	court	held	a testimonial hearing	in	 his	 absence	 at	 which he	 was	 represented	 by	 counsel, following	 which	 it made	 detailed	 findings	 and	 entered	 a	 jeopardy	 order against	the	father	as	to	all	of	the	children ,	finding	that	he (1) failed	to protect D.G. from	 assault	 in	 the	 home	 in	 that,	 “at	 a	 minimum he	 was	 aware	 of	 the physical	 violence,	 did	 nothing	 to	 protect	 the	 child,	 and	 took	 active	 steps to conceal it	fro m	others ”;	(2)	failed	to	protect	Lawrence	from	the	mother’s	drug4

use during	her	pr egnancy ,	resulting	in	the	baby	being	born	drug

- affected ;	and (3) abandoned	th e	children	by	leaving	the	state,	having	no	contact	with	them, and	 “providing	 no	 assistance,	 financial	 or	 otherwise.” We	 affirmed the jeopardy	 order when the	 father	 appealed. In re	 D.G. , Mem	 15

- 36 (June 9, 2015)

. [¶5 ] On the	 day	 of	 the	 father’s rescheduled jeopardy	 hearing, the Department	 filed	 a	 petition	 to	 terminate	 the	 parents’	 rights to	 Lawrence

. See 22 M.R.S.	§ 4052 (2015). T he	mother	consented	to the termination	of	her
pa rental	rights ;	the	father	did	not

. [¶6 ] On	 October	 10, the	 Department	 requested	 a	 preliminary protection	 order	 concerning	 Cameron,	 Calvin,	and	 Cole	 based,	in	 part,	 on	an allegation	 that	 the	 father	 had	 been	 having	 unsupervised	 contact	 with	 the children	 in violation	 o f	 the	 jeopardy	 order that	 the	 mother	 agreed	 to

. The court	 issued	 a preliminary	 order	 granting custody	 of	 the	 children	 to	 the Department. The	parents	appeared	at	the	summary	preliminary	hearing	and contested	the preliminary	order

. T he	court he ard	evidence	that	two	Assistant Attorneys	General	had seen the	father	in	a	car	with Cameron,	Calvin,	and	Cole. The	 court made	 a	 finding	 that	 it	 had	 “no	 confidence	 in	 the	 parents’5 representations	or	promises , ”	and	ordered	that	the	preli minary	order	remain in	effect. [¶7 ] On	April	10,	2 015,	the	Department	filed	a	petition	to	terminate	the parents’	rights	to Cameron,	Calvin,	and	Cole. A	hearing held over	three	days	in November	 2015	 resulted	 in	 the	 court	 issuing	 a detailed twenty
- page order terminating	both parents’	rights	to Cameron,	Calvin, Cole ,	and	Lawrence

. The father	left	the	courtroom	on	the	afternoon	of	the	first	day	of	the	hearing	and, without	 explanation,	 never	 returned;	 he	 continued	 to	 be	 represented	 by counsel	throughout. Both	parents	appealed.
B. Facts	Found	in	the	Termination	Order [¶8 ] The	 court	 found	 the	 following	 facts by	 clear	 and	 convincing evidence in	its	 order	 terminating	parental	 rights ;	 the findings	are	 supported by	evidence	in	the	record. See In	re	K.M. ,	2015	ME	79,	¶¶	9,	11,	118	A .3d	812.
1. Father [¶9 ] In	 2009, five	 years	 before	 this	 case	 began, the	 court ( Douglas,	J. ) issued	 a	 jeopardy	 order as	 to	 the	 father concerning	 Cameron 4 in which	 the court	found ,	reminiscent	of	the	jeopardy	order	in	this	case, that	the	father	had failed to	protect	Cameron	from	the	mother’s	substance	abuse,	resulting	in	the

4 The	 jeopardy	 order	 notes	 that, as	 in the	 present	 case,	 the	 father	 initially	 appear ed	 for	 the hearing	and	then	left

.6 child	 being	 born	 drug

- affected. The	 court	 also	 found	 that	 the	 father	 had inflicted	 domestic	 violence	 on	 the	mother ,	 and	 noted	 his	 “lengthy	 history	 of criminal	conduct,	including	domes tic	violence	against	his	former	wife ,	as	well as	convictions	for	theft,	burglary,	and [] disorderly	conduct

. [He]	has	spent	a good	part	of	his	adult	life	on	probation	or	in	jail.” W hen	reunification	efforts with	the	mother were	successful , t he	child	prot ection	case	was	dismissed and replaced	with	 a	 parental	 rights	 and	 responsibilities	 order	 barring	 the	 father from	having	unsupervised	contact	with	Cameron

. [¶1 0 ] In	 January	 2014,	 the	 current	 child	 protection	 case	 began	 when
six

- year - ol d	D.G. came	to	school with	unexplained	bruises. Dr. Lawrence Ricci ,

co - director	 of	 the	 Spurwink	 Child	 Abuse	 Program, opined	 that	 the	 injuries were	inflicted. The	mother	was	 then	 pregnant	with	 Lawrence,	who ,	like	 his brother, was	 born	 drug

- affected;	 the	 father	 did	 not	 visit	 L awrence	 at	 the hospital. In	 January	2015 , the	Department	scheduled	a	supervised	visit with
Lawrence for	 the	 father;	 he	 confirmed	 the	 date	 and	 time	 with	 the	 visit supervisor	but	did	not attend. The	father also did	not	follow	through	with	the opportunity f or	approved visits	with	the other children afte r	last	seeing	them in	September 2014

.7 [¶1 1 ] The	court further found	that	t hroughout	the child	protection	case the	 father	maintained	a	relationship	with	 the	mother,	although	he	knew	 that his	 actions	 affected	 t he	 likelihood	 of	 the	 mother	 keeping	 custody	 of	 the children. T he	children	were	aware	of	domestic	violence that	he	perpetrated occurring in	the	home. In	February	2015	there	was	a	heroin	“drug	bust”	at	the mother’s	apartment	where	the	father	was	present;	t he	father’s	br other

- in

- law was	arrested. The	court	summarized	the	factors	on	which	it	based	its	finding of	the	father’s	parental	unfitness : There	is	no	evidence	that	he	has	engaged	in	any	services	designed to	 address	 the	 jeopardy	 identified	 by this	 Court in	 its	 order	 of June 5,	 2014.	 	 He	 actually	 left	 the	 trial	 in	 this	 matter	 midway through	 and	 did	 not	 return. His	 actions	 continue	 to	 constitute abandonment	 of	 his	 children.	 	 His	 continued	 refusal	 to	 separate from	 [the	mother]	and	provide	her	 the	space	and opportunity	 to address	 her	 own	 issues	 has	 seriously	 impeded	 her	 ability	 to alleviate	 jeopardy	 and	 regain	 custody	 of	 her	 sons.	 	 There	 is	 no evidence	that	any	of	the	children	has	a	firm,	positive	connection	to their	father.
2. Mother [¶1 2 ] The mother has a	long

- standing substance	abuse	problem,	which she	acknowledged	in	 the	2009	and	2014	jeopardy	orders, that	she has made

some progress	in	addressing. The	court	found	that	“[i] t	is	likely	that	she	will continue	 to	 have	 some	 success if she	 can	 remain	 i n	 opi ate	 replacement therapy.”8 [¶1 3 ] She	has	done	less	well , and	often	failed, in	taking	advantage	of the
many services offered	to	her by	the	De p a rtment through	numerous	providers to	 address	 a	 wide	 range	 of other issues	 affecting	 potential	 reunification

. Thos e	 services	 include d opportunities for	 supervised visitation	 with	 the children; case	management ; psychiatric treatment; medication	ma nagement; individual	 counseling concerning	 her mental	 health	 issu es ; assistance	 with parenting	issues;	and help	with the	iss ue	of	domestic	violence

. [¶1 4 ] A	central concern for	the	court

— a	concern well

- supported	by	the record

— was the	mother’s	ongoing	clandestine	relationship	with	the	father : [T he	mother]	still	does	not	accept	that	[the	father]	presents	a	risk of	harm	to	her	c hildren	and	has	not	been	willing	or	able	to	sever her	 ties	 with	 him.	 .	 .	 .	 It	 was	 imperative	 in	 this	 matter	 that	 [the mother]	 demonstrate	 a	 relatively	 long

- term,	 reliable	 history	 of separation	 from	 [the	 father ] .	.	.	.	 In	light	of [the]	history	 [of	 their re lationship],	as	well	as	[the	mother’s]	failure	to	be	honest	on	any number	of	issues,	the	representation	that	she	has	been	separated from	 [the	 father]	 for	 several	months,	 carrie s	 virtually	 no	 weight with	the	C ourt. 3

. Children [¶1 5 ] The	 court	 found	 that the	 children	 have	 significant	 difficulties caused,	 at	 least	 in	 part,	 by	 their	 parents	 and	 their parents’ relationship; however,	 Cameron,	 Cole,	 and	 particularly	 Lawrence	 are	 doing	 well	 in	 their current	 placements. Although	 Calvin	 is	 struggling, the	 court found	 that	 he9 cannot	 make	 progress	 without	 the	 chance	 to	 become	 established	 in	 a permanent	home. The	children	have	been	exposed	to	domestic	violence	when living	with	their	parents. Additionally,	the	children	have sometimes indicated that	 they were not	 to tell	 the	 truth	 to	authorities	about	what went on	in	 the home	and	who was there ,	and	have been	labeled as liars by	the	mother	when they	have	made	such	reports

. II.		DISCUSSION [¶1 6 ] The	termination	of	parenta l	rights	is	governed	by	statute. 5 When

a	cour t	enters	a	judgment	terminating a	parent’s rights	to	a	child ,

5 The	governing	statute	provides:
1. Grounds. The	court	may	order	termination	of	parental	rights	if:

.	.	.	. B. Either: (1) The	parent	consents	to	the	termination.		Consent	shall	be	written	and voluntarily	and	kno wingly	executed	in	court	before	a	judge.	The	judge	shall explain	the	effects	of	a	termination	order;	or (2) The	court	finds,	based	on	clear	and	convincing	evidence,	that: (a) Termination	is	in	the	best	interest	of	the	child;	and (b) Either: (i) The parent	 is	 unwilling	 or	 unable	 to	 protect	 the	 child	 from jeopardy	 and	 these	 circumstances	 are	 unlikely	 to	 change	 within	 a time	which	is	reasonably	calculated	to	meet the	child’ s	needs;10 [w] e	 review	 the court’ s	 factual	 findings	 for	 clear	 error	 and	 its ultimate	conclusion	regarding	the	best	interest	of	the	child	for	an abuse	of	discretion,	viewing	 the	 facts,	and	 the	weight	 to	be give n them,	 through	 the	 trial	 court’ s	 lens

. Evidence	 is	 sufficient	 to affirm	an	order	terminating	parental	rights	when	a	review	of	the entire	 record	 demonstrates	 that	 the	 trial	 court	 rationally	 could have	 found	 clear	 and	 convincing	 evidence	 in	 that	 record to support	 the	 necessary	 factual	 findings	 a s	 to	 the	 bases	 for termination.
In	 re	 R.M. ,	 2015	 ME	 38,	 ¶	 7,	 114	 A.3d	 212	 (citations	 and	 quotation	 marks omitted). [¶1 7 ] Here,	 the	 court’s	 factual	 findings	 recited supra have	 support	in the	record	and	are	not	c learly	erroneous

. See State	v.	Lowden ,	2014	ME	142,	¶ 8,	 106 A.3d 1134. As	 to	 the	 mother,	 the	 court	 found	 that	 she	 had	 the opportunity	 to	 utilize	 numerous	 services	 offered	 by	 the	 Department	 in	 an effort	 to	reunify	with	 the	children;	her	cooperation	with and	participation	in those	services	was	insufficient,	and	she	was	unwilling	to	end	her	relationship with	 the	 father,	 which	 the	 court	 found	 to	 be	 a	 compell ing	 factor. As	 to	 the

(ii) The	 parent	 has	 been	 unwilling	 or	 unable	 to	 take	 responsibility fo r	the	child	within	a	time	which	is	reasonab ly	calculated	to	meet	the child’ s	needs; (iii) The	child	has	been	abandoned;	or (iv) The	parent	has	failed	to	make	a	good	faith	effort	to	rehabilitate and	reunify	with	the	child	pursuant	to	section	4041.
22	M .R.S.	§	4055(1)(B) (2015)

.11 father ,	 the	 court	 found	 “no	 evidence	 he ha[d] engaged	 in	 any	 services designed to	 address	 the	 jeopardy	 identified	 by	 this	 Court,”	 and	 that	 he	 had abandoned	 the	 children,	 which	 is	 sufficient,	 standing	 alone,	 to	 establish unfitness. 22	 M.R.S. § 4055 (1)(B)(2)(b)(iii) .	 	 The	 court	 also	 properly considered	“ the	centrality	of	permanency	in child	protective	proceedings ,” In

re Thomas	 H. ,	 2005	 ME	 123,	 ¶ 25,	 889	 A.2d	 297,	 and had	 in	 evidence	 the report and	 testimony of	 the	 guardian	 ad	 litem supporting	 the	 petition	 for
termination

. [¶1 8 ] From	those	facts and	legal	authorities ,	the	court	could rationally find	 by	 clear	 and	 convincing	 evidence	 that both	 parents were unwilling	 or unable	 to	 protect	 the	 children	 from	 jeopardy or to	 take responsibility	 for them; that neither of	 those circumstance s is likely	 to	 change	 within	 a	 time reasonably	calculate d	to	meet	the	children’ s	needs;	that th e	father	abandoned the	 children;	 and	 that	 termi nation	 of	 the	 parents’	 rights	 is in	 the	 children’s best	interest. See 22 M.R.S.	§	4055(1)(B)(2). Accordingly,	the	court	did	not	err or	abuse	its	discretion in	entering	a judgment terminating	the	parents’	rights. The	entry	is: Jud gment	affirmed.12 On	the	briefs: Amy	McNally ,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques, P.A.,	Biddeford,	for	appellant	mother Philip	Notis,	Esq.,	Portland,	for	appellant	father Janet	 T.	Mills,	Attorney	 General,	 and	Meghan	 Szylvian,	Asst.	Atty.	 Gen., Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of Health	and	Human	Services

Biddeford	District	Court	docket	number	PC

- 2014

- 07 F OR C LERK R EFERENCE O NLY